Rappa v. American Airlines, Inc.

• Decision Date: 02 August 1976
• Citation: 386 N.Y.S.2d 612,87 Misc.2d 759
• Parties: Francisco RAPPA, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant.
• Court: New York City Court

Page 612

386 N.Y.S.2d 612

87 Misc.2d 759

Francisco RAPPA, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant.

Civil Court of the City of New York, Queens County, Part I.

Aug. 2, 1976.

Jose A. Rey, Jackson Heights, for plaintiff.

James C. Bovell, New York City, for defendant.

DECISION

NAT H. HENTEL, Judge.

Defendant airlines moves for summary judgment on the ground that no masterservant relationship existed between defendant and Dallys Travel, Inc., a travel agent. Plaintiff arranged for two full-fare and one half-fare round trips from New York City to Honolulu with Dallys Travel Bureau. The latter issued the requested tickets after plaintiff paid $1449.00 for same, by taking a standard airline ticket blank and imprinting thereon the carrier's identification plate logo, which in this case was American Airlines. The ticket then reads: 'Passenger ticket and baggage check--issued by AMERICAN AIRLINES.' Further, the said ticket bears the legend: 'It is unlawful to purchase or resell this ticket from/to any entity other than the issuing carrier or its authorized agents.' On the face of the ticket, it is also stated that the same is 'issued subject to conditions of contract on passenger's coupon.' On the reverse side of the ticket there is imprinted: 'Issued by Carrier whose name is in the 'issued by' section on the face of the Passenger Ticket and Baggage Check.' The ticket was issued on December 27, 1974, for a flight to Honolulu scheduled for an open date.

In or about January 1975, Dallys apparently went out of business and, thereafter, none of its principals or employees apparently could be located. Prior to this, Dallys had entered into a sales agency agreement with the Air Traffic Conference of America (known as ATC), as late as May 20, 1974, to which agreement the defendant was a participant. Dallys, pursuant to this agreement, did not transmit any of plaintiff's air fare money received to the defendant. In March 1975, plaintiff, having been unsuccessful in seeking a refund of the fare paid from Dallys, went directly to defendant and sought the refund from that quarter. On March 18, 1975, defendant picked up plaintiff's tickets, and issued to him a ticket redemption certificate. Now, defendant refuses to make refund on the theory that Dallys was an independent broker and not its agent, but rather plaintiff's agent in the transaction, and thus plaintiff is suing the wrong party. Defendant cites in support of these affirmative defenses, Bucholtz v. Sirotkin Travel Ltd., 74 Misc.2d 180, 343 N.Y.S.2d 438, Aff'd. 80 Misc.2d 333, 363 N.Y.S.2d 415 (App.T., 1974); Siegel v. Council of Long Island Educators, Inc., 75 Misc.2d 750, 348 N.Y.S.2d 816 (App.T., 2nd Dept. 1973); Levine v. British Overseas Airways Corp., 66 Misc.2d 766, 322 N.Y.S.2d 119; Simpson v. Compagnie Nationale Air France, 42 Ill.2d 496, 248 N.E.2d 117; Antar v. Trans World Airlines, Inc., 66 Misc.2d 93, 320 N.Y.S.2d 355, (App.T., 2nd Dept., 1970), all of which are distinguishable from this case because of the Air Traffic Conference Sales Agency Agreement annexed to defendant's moving papers.

The said agreement provides, amongst other things, the following, which the Court places specific emphasis upon:

(1) 'The Agent (Dallys) shall exercise the authority granted by this Agreement, and present itself as an agent of the Carrier . . .'

(2) The Carrier (American Airlines) as a member of the Air Traffic Conference is bound by the Agreement.

(3) As authorized by the Carrier, agent may use the identification plate (logo) of the Carrier as issued by the Carrier, but said plate shall remain the property of the Carrier.

(4) 'The Agent may represent himself on letterheads, advertising, telephone listings and office signs and otherwise as an 'Agent' or 'Travel Agent' representing the Carrier . . .'

(5) 'The Agent shall report and remit three times each month for all transportation services sold under the Agreement to a bank designated by the ATC.'

(6) All moneys, less applicable commissions to which Agent is entitled and collected by Agent . . . 'shall be the property of the Carrier, and shall be held in trust by the Agent until satisfactorily accounted for to the Carrier.' (emphasis supplied).

(7) The Agent shall maintain a bond for the joint and several benefit of the members of the ATC in a minimum amount of $10,000.

With respect to this latter provision, during oral argument of this motion before the Court, defendant's attorney admitted that Dallys' abdication of its business responsibilities had caused its bond to be completely depleted and thus there was none available for plaintiff's case. Further, defendant's attorney admitted that in prior cases of this type, defendant had, nevertheless, paid back the customer out of its own funds as a matter of good customer...